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Advocates hail judge’s decision in woman’s assisted death appeal

Lawyer Andrew Faith, seen here in 2016, says the court’s decision that a 77-year-old woman has a “reasonably foreseeable” natural death, is a relief for his client. The judge's ruling is an attempt to clear up uncertainty that left his client's doctor unwilling to perform the end-of-life procedure for fear of a murder charge.
(Colin Perkel / THE CANADIAN PRESS FILE PHOTO)

A 77-year-old woman seeking medical assistance in dying has a “reasonably foreseeable” natural death, a judge declared Monday in an attempt to clear up uncertainty that left her doctor unwilling to perform the end-of-life procedure for fear of a murder charge.

The decision has been hailed by advocates for clarifying a confusing part of the assisted-dying legislation.

Two doctors found that the woman, known under a publication ban as AB, qualified for medical assistance in dying.

But the first doctor later said he was “uncomfortable” performing the procedure because another doctor had disagreed that the woman met the requirement of a reasonably foreseeable natural death, and because of the vagueness of the term “reasonably foreseeable.”

Superior Court Justice Paul Perell said the issue is the doctor’s “abundance of caution and apprehensive misunderstanding” of the medically-assisted dying legislation put in place a year ago.

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To be reasonably foreseeable, the person’s natural death doesn’t have be imminent or within a specific time frame or be the result of a terminal condition, he said.

“The legislation is intended to apply to a person who is “on a trajectory toward death because he or she a) has a serious and incurable illness, disease or disability; b) is in an advanced state of irreversible decline in capability; and c) is enduring physical or psychological suffering that is intolerable and that cannot be relieved under conditions that they consider acceptable,” he said.

AB’s case clearly qualifies as she is an “almost 80-year-old woman in an advanced stated of incurable, irreversible, worsening illness with excruciating pain and no quality of life,” he said.

She was diagnosed with osteoarthritis when she was 43 and the pain got progressively worse over her life. By 2015 the pain for which she takes fentanyl and morphine became unbearable — she could not sit up at a table and often woke up screaming in pain.

“I will remain here in this room forever, in pain, until someone allows me to die,” she wrote in an affidavit. “I have lived a good life and a long life . . . I simply want to quietly move out of life, end my intolerable suffering and go home to God.”

AB’s lawyer Andrew Faith says the court’s decision is a relief for his client and hopes her physician will have the reassurance he needs.

He also hopes the decision will bring much-needed clarity for other doctors with patients in similar circumstances.

It is quite clear now that we are not talking about specific time-frames like six months or a year, says Shanaaz Gokool, the CEO of Dying with Dignity.

“The government has said repeatedly you don’t have to have to be terminally ill, you don’t have to have a time frame, the prognosis that you have doesn’t have to be what leads to your natural death,’ she said.

“We have found an inconsistent application when it comes to the eligibility criteria . . . and I think this decision will go a long way to extinguish that sort of myth.”

Gokool says there remains a shortage of doctors and nurse-practitioners who are involved in medical assistance in dying and hopes this decision will provide some comfort for both patients and doctors.

Gokool has come to know AB over the past few months and says she admires her determination and her perseverance.

“I will miss her if and when she decides to have a medically-assisted death,” Gokool said. “She is a woman of a lot of courage.”

In the decision, Perell said that his declaration would not interfere with prosecutorial discretion as argued by the Crown and will not exempt a medical professional from following the criteria laid out in the legislation.

“All the court can do in the circumstances of the immediate case is to clarify what Parliament meant in (the legislation) so the Physician-1 and other physicians have no misunderstanding about how to comply with the legislation,” Perell said. “There is no floodgates concern because the court need do this only once for whatever benefit it may provide to AB and others.”

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